Buy sell provisions are very common in closely held businesses to control the transfer of shares of stock, partnership and or membership interests depending upon the business entity used by the owner(s). They typically are used to determine the value of the transferred interest based upon various types of formula clauses when a transfer occurs based upon either a lifetime event or at death.
In 2014, the estate and gift tax is $5.34 million for an individual and $10.68 million for a couple. Notwithstanding current gift and estate changes this does not mean for the closely held business, succession planning for the next generation and continuing the closely held business is still not very important.
I am currently involved in a gift tax audit where the IRS is challenging certain restrictions contained in a limited liability company (“LLC”) operating agreement dealing with valuation issues. The LLC has only family members. If the LLC had two equal non-related business owners the IRS would not have challenged the restrictions dealing with valuations assuming the valuation formula was valid.
Based upon the current estate and gift tax exclusion amounts mentioned above, I am recommending certain restrictions that I would always include in any buy sell arrangement to be eliminated for a family business where everyone is related family members and subject to either a gift or estate tax. An example is where a minority interest owner wants to sell his or her interest to a bona fide third party but the business entity or its owners is given the first right of refusal to purchase the interest before the sale is completed.
Besides this gift tax audit starting, January 1, 2014 the California Revised Uniform Limited Liability Company Act (RULLCA) revises the rules for formation and operation of LLCs in the state of California. If your LLC operating agreement has some restrictions regarding valuation matters on transfers you should give serious consideration to have it reviewed by your attorney besides dealing with two of the RULLA concerns mentioned below.
For a member managed LLC where there are only two equal voting members or for a single member LLC, RULLCA may not have that much of an impact on the current LLC operating agreement. However, In a manger managed LLC where there are more than two members, a review of RULLCA is necessary to determine what existing operating agreement provisions may need to be updated under RULLCA
One of the simplest examples that I give to a manager of a manger managed LLC deals with the restrictions imposed on a manager before the manager can act upon behalf the LLC. Usually the manager must obtain the member’s approval of a certain percentage before the manager can act. Typically, some of the normal restrictions on a manager are as follows:
- (a) Any act that would make it impossible to carry on the ordinary business of the LLC;
- (b) The disposition of all or a substantial part of the LLC’s assets not in the ordinary course of business;
- (c) The incurring of any debt not in the ordinary course of business;
- (d) The incurring of any contractual obligation or the making of any capital expenditure with a total cost of more than $XXXXX.
Depending on the family business situation and whether or not you use a LLC as the business entity for the family business, you should review your buy sell provisions with your advisors to make certain they make sense today.